98217661•Rene Sebastian Friesen Froese
Gesamter Gesetzestext
This Opinion Is Not a Precedent of the TTAB Mailed: February 10, 2026 UNITED STATES PATENT AND TRADEMARK OFFICE _____ Trademark Trial and Appeal Board _____ In re Rene Sebastian Friessen Froese _____ Serial No. 98217661 _____ Miguel Villarreal, Jr., of Gunn, Lee & Cave, P.C., for Rene Sebastian Friesen Froese. Caitlin Watts-Fitzgerald, Trademark Examining Attorney, Law Office 111, Chris Doninger, Managing Attorney. _____ Before Wellington, Thurmon and O’Connor, Administrative Trademark Judges. Opinion by Thurmon, Administrative Trademark Judge: Rene Sebastian Friesen Froese (“Applicant”) seeks registration on the Principal Register of the mark FORTEX MFG, in standard characters with “MFG” disclaimed, for “Custom manufacture of vehicles, vehicle parts, and metallic structures in the nature of power trains, dollies, and storage containers,” in International Class 40, and “Engineering of vehicles, vehicle parts, and metallic structures in the nature of power trains, dollies, and storage containers; Industrial design of vehicles, vehicle
Serial No. 98217661 - 2 - parts, and metallic structures in the nature of power trains, dollies, and storage containers,” in International Class 42.1 The Trademark Examining Attorney issued a final refusal of registration under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), finding a likelihood of confusion, based on two registered marks owned by the same entity. One cited Registration is for the mark FORTEC, in standard characters, for “Automobile customization, modification, and accessory installation services,” in International Class 37,2 and the second cited Registration is for the mark shown below for “Automobile customization services,” in International Class 37: .3 The appeal is fully briefed and ready for final decision. We affirm the refusal to register. 1 Application Serial No. 98217661 was filed on October 10, 2023, under Section 1(b) of the Trademark Act, 15 U.S.C. § 1051(b), alleging a bona fide intent to use the mark in commerce. 2 Registration No. 3122646, issued August 1, 2006, renewed. 3 Registration No. 3183769, issued December 12, 2006, renewed. The mark is described as follows: “The mark consists of the word FORTEC in stylized lettering. The letters F, R, T, E, and C in FORTEC are white with silver outlines and then a thin black outline. The letter O in FORTEC is formed from a rectangular red design with a white outline superimposed over an X in the same lettering style as the rest of the mark.” The colors red, black, silver and white are claimed as a feature of the mark.
Serial No. 98217661 - 3 - Section 2(d) – Applicable Law Our determination under Section 2(d) is based on an analysis of all of the probative evidence of record bearing on a likelihood of confusion. In re E. I. DuPont de Nemours & Co., 476 F.2d 1357, 1361 (CCPA 1973) (“DuPont”), cited in B&B Hardware, Inc. v. Hargis Indus., Inc., 575 U.S. 138 (2015); see also In re Majestic Distilling Co., 315 F.3d 1311, 1314 (Fed. Cir. 2003). We must consider each DuPont factor for which there is evidence and argument. See, e.g., In re Guild Mortg. Co., 912 F.3d 1376, 1378-79 (Fed. Cir. 2019). “Whether a likelihood of confusion exists between an applicant’s mark and a previously registered mark is determined on a case-by-case basis, aided by application of the thirteen DuPont factors.” Omaha Steaks Int’l, Inc. v. Greater Omaha Packing Co., 908 F.3d 1315, 1318 (Fed. Cir. 2018). When analyzing these factors, the overriding concerns are not only to prevent buyer confusion as to the source of the goods or services, but also to protect the registrant from adverse commercial impact due to use of a similar mark by a newcomer. See In re Shell Oil Co., 992 F.2d 1204, 1208 (Fed. Cir. 1993). “Each case must be decided on its own facts and the differences are often subtle ones.” Indus. Nucleonics Corp. v. Hinde, 475 F.2d 1197, 1199 (CCPA 1973). Varying weights may be assigned to each DuPont factor depending on the evidence presented. See Citigroup Inc. v. Cap. City Bank Grp. Inc., 637 F.3d 1344, 1356 (Fed. Cir. 2011); Shell Oil, 992 F.2d at 1206 (“the various evidentiary factors may play more or less weighty roles in any particular determination”). In any likelihood of confusion analysis, two key considerations are the similarities between the marks and the
Serial No. 98217661 - 4 - similarities between the goods or services. See In re i.am.symbolic, LLC, 866 F.3d 1315, 1322 (Fed. Cir. 2017) (quoting Herbko Int’l, Inc. v. Kappa Books, Inc., 308 F.3d 1156, 1164-65 (Fed. Cir. 2002)); In re Chatam Int’l Inc., 380 F.3d 1340, 1342 (Fed. Cir. 2004); Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d 1098, 1103 (CCPA 1976) (“The fundamental inquiry mandated by § 2(d) goes to the cumulative effect of differences in the essential characteristics of the goods and differences in the marks.”). Likelihood of Confusion – Analysis Applicant and the Trademark Examining Attorney presented arguments under DuPont factors one, two, three, four and six. We address these factors in turn below. We limit our analysis to the cited word mark FORTEC, because it is more similar to the applied-for mark than the cited composite mark. A. Similarity of the Marks To evaluate the similarity of the marks under the first DuPont factor, we consider the marks in their entireties as to appearance, sound, connotation and commercial impression. See, e.g., Palm Bay Imps., Inc. v. Veuve Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 1371 (citing DuPont, 476 F.2d at 1361). “Similarity in any one of these elements may be sufficient to find the marks confusingly similar.” In re Inn at St. John’s LLC, No. 87075988, 2018 TTAB LEXIS 170, *13 (quoting In re Davia, No. 85497617, 2014 TTAB LEXIS 214, *4, aff’d mem., 777 F. App’x 516 (Fed. Cir. 2019); accord Krim-Ko Corp. v. Coca-Cola Bottling Co., 390 F.2d 728, 732 (CCPA
Serial No. 98217661 - 5 - 1968) (“It is sufficient if the similarity in either form, spelling or sound alone is likely to cause confusion.”) (citation omitted). “The proper test is not a side-by-side comparison of the marks, but instead whether the marks are sufficiently similar in terms of their commercial impression such that persons who encounter the marks would be likely to assume a connection between the parties.” Coach Servs. Inc. v. Triumph Learning, LLC, 668 F.3d 1356, 1368 (Fed. Cir. 2012). The focus is on the recollection of the average purchaser, who normally “retains a general rather than a specific impression of marks.” In re i.am.symbolic, llc, No. 85916778, 2018 TTAB LEXIS 281, *11. The marks, FORTEC and FORTEX MFG are similar in appearance. The first term in the applied-for mark is dominant, partly because it is the first term in the mark, and also because MFG is an abbreviation for “manufacturing,” which is included in the services identified in the Application.4 This term, therefore, is descriptive or generic as to some of Applicant’s services and has been disclaimed, and consumers, therefore, are not likely to rely on this term to distinguish Applicant’s services from those of others.5 It is clear that FORTEX is the dominant and sole distinctive element of the applied-for mark. Both words have six letters and the first five letters of each word are identical. This creates a similar appearance that is likely to lead consumers to mistake one mark for the other. The added MFG in the applied-for mark creates only a minor 4 Office Action dated June 4, 2024, at 4-5, 77. 5 The MFG portion of the applied-for mark was disclaimed.
Serial No. 98217661 - 6 - visual distinction, given that the word “manufacturing” is not distinctive for Applicant’s services. The visual similarity of the marks creates a likelihood of confusion. The marks also sound similar. The “x” sound at the end of FORTEX sounds similar to the “c” sound at the end of the cited mark. These letters do not sound identical, but they are similar. And, as the Trademark Examining Attorney noted, if consumers use a plural or possessive version of the cited mark (Fortecs or Fortec’s), the marks will sound identical. But even without this variation on the cited mark, we find these marks are similar in sound. When the entire applied-for mark is spoken, the “MFG” element creates a difference in sound from the cited mark. But consumers often shorten marks, particularly when a later part of the mark merely describes something about the goods or services, as is true here. When the applied-for mark is shortened to FORTEX, it sounds similar to the cited mark, and this fact also increases the likelihood of confusion. Applicant argues that the marks sound different because consumers will speak out the letters “M”, “F” and “G”.6 There is no evidence to support this argument, and we find it at least as likely that consumers will say “manufacturing” for the MFG part of the applied-for mark. But more importantly, and as we noted above, consumers are likely to shorten the applied-for mark to FORTEX, which sounds similar to FORTEC. The fact that these words end in a different letter means the words can be pronounced 6 6 TTABVUE 6.
Serial No. 98217661 - 7 - differently, a point Applicant makes.7 But the fact that two words can be distinguished when carefully pronounced does not mean the words are not similar. The question is whether consumers who have a somewhat vague recollection of the cited FORTEC mark will find it similar in sound to the word FORTEX. We believe consumers will find these marks similar in sound, despite the arguments to the contrary made by Applicant. There is no evidence showing that “Fortec” or “Fortex” have any established meaning within the relevant field, though Applicant argues that the “tex” part of the applied-for mark refers to Texas, the state in which Applicant is located.8 Without evidence showing that consumers connect the “tex” in the applied-for mark to the State of Texas, we cannot make any finding as to the meaning of the marks. We find the commercial impression created by these marks is similar. The marks conjure up notions of technology or manufacturing. These are similar impressions and this similarity also increases the likelihood of confusion. In summary, we find the marks are similar in appearance, sound and commercial impression. The first DuPont factor supports the Section 2(d) refusal. B. Similarity or Relatedness of the Services We evaluate the second DuPont factor based on the services identified in the Application and the cited Registration. See Stone Lion Cap. Partners, LP v. Lion Cap. LLP, 746 F.3d 1317, 1323 (Fed. Cir. 2014); Octocom Sys., Inc. v. Hous. Comput. Servs. 7 Id. at 6-7. 8 9 TTABVUE 6 (Applicant’s reply brief).
Serial No. 98217661 - 8 - Inc., 918 F.2d 937, 942 (Fed. Cir. 1990). It is sufficient for a finding of likelihood of confusion as to a class of services in the Application if relatedness is established between any of the services identified in that class and the cited Registration. Tuxedo Monopoly, Inc. v. Gen. Mills Fun Grp., 648 F.2d 1335, 1336 (CCPA 1981); see also Double Coin Holdings Ltd. v. Tru Dev., No. 92063808, 2019 TTAB LEXIS 347, *18; In re Aquamar, Inc., No. 85861533, 2015 TTAB LEXIS 178, *9 n.5. In addition, the services need only be sufficiently related that a relevant consumer would be likely to assume, upon encountering services marketed under the marks at issue, that the services originate from, are sponsored or authorized by, or are otherwise connected to the same source. See Black & Decker Corp. v. Emerson Elec. Co., Nos. 91158891 and 91158941, 2007 TTAB LEXIS 50, *25-26. The cited Registration identifies “Automobile customization, modification, and accessory installation services,” in International Class 37, while the Application identifies services in classes 40 and 42. We will compare the services from each class in the Application to the services identified in the cited Registration. Applicant mistakenly argues that because some of the services in the Application are different from the services in the cited Registration, this factor does not support the refusal.9 That is an incorrect application of the law governing our likelihood of confusion analysis. As noted above, it is enough if any of the services identified in each class of services in the Application are similar or related to the services identified in the cited Registration. 9 6 TTABVUE 9-10.
Serial No. 98217661 - 9 - 1. The International Class 40 Services The Application identifies the following services in International Class 40: “Custom manufacture of vehicles, vehicle parts, and metallic structures in the nature of power trains, dollies, and storage containers.” The cited Registration identifies “Automobile customization, modification, and accessory installation services,” in International Class 37. We interpret the identification in the Application to mean that the phrase “in the nature of power trains, dollies, and storage containers,” modifies only the term “metallic structures,” and does not modify the terms “vehicles” or “vehicle parts.” This interpretation makes sense and is consistent with the arguments Applicant presented during the prosecution and appeal of the Application. To read the modifying phrase as applicable to all three of the distinct items previously recited in the identification would effectively exclude “vehicles” from the identification, because “power trains, dollies and storage containers” are not vehicles. We apply a similar construction to the International Class 42 services discussed in the following section of this decision. Despite the fact that these services are identified in different classes, we find the services are similar. Applicant’s services involving custom manufacture of vehicles and vehicle parts include the custom manufacture of automobiles and automobile parts, because automobiles are a type of vehicle. The services of Applicant and Registrant therefore can involve the same goods (automobiles) as well as similar purposes (obtaining a customized automobile). Indeed, the services can directly overlap. For example, when an automobile is customized, different, altered parts may be used with the vehicle. Those customized parts must be obtained, which may be
Serial No. 98217661 - 10 - through custom manufacturing. Thus, there is a clear connection between the “custom manufactu[ing] of … vehicle parts” services identified in the Application and the “customization” services in the cited Registration. These services are closely related and complementary. But does that mean that consumers are accustomed to seeing both services—the custom manufacture of automobile parts and the installation of those parts—offered by a single party? The Trademark Examining Attorney submitted evidence showing third parties that provide both the manufacturing of custom parts and the installation of such parts under a single trademark. One third party, for example, JK Automotive Designs, focuses on car audio systems and custom upholstery.10 JK Automotive Designs will design and fabricate custom speaker enclosures and then install those enclosures in a customer’s vehicle.11 In addition, they make custom upholstery, including seats, dashboards and convertible tops and install these customized parts on customers’ vehicles.12 In short, JK Automotive Designs provides custom manufacturing of vehicle parts (services identified in the Application) and custom installation of those parts (services identified in the cited Registration) under a single mark. 10 Office Action dated June 4, 2024, at 23-40. 11 Id. at 27. 12 Id. at 33-38.
Serial No. 98217661 - 11 - There is also evidence that Porsche provides customization services for their own vehicles, and that Porsche provides the custom manufacturing and installation of the customized parts under its Porsche trademark.13 Revolution Auto Design provides custom printing and car wrap services.14 According to its website, “Vehicle wraps are a form of vinyl graphics applied to vehicles to change their appearance, often used for advertising or customization purposes.”15 Revolution Auto Design manufactures the wrap (the custom manufacturing services identified in the Application) and installs it on a vehicle (the custom installation services identified in the cited Registration) under a single mark. There is additional, similar evidence in the record.16 This evidence shows that some third parties, including what appear to be local shops and at least one large automobile manufacturer (Porsche), offer services identified in both the Application and the cited Registration under a single mark. The evidence, therefore, supports the Trademark Examining Attorney’s conclusion that the services are related. We find the services are closely related and complementary, as we explained above. The similarity and relatedness of the services makes confusion more likely. 13 Id. at 48-55. 14 Id. at 61-64. 15 Id. at 62. 16 Id. at 65-74 (Willy’s Auto offers both custom fabrication of parts and installation of those parts).
Serial No. 98217661 - 12 - 2. The International Class 42 Services The Application identified the following services in International Class 42: “Engineering of vehicles, vehicle parts, and metallic structures in the nature of power trains, dollies, and storage containers; Industrial design of vehicles, vehicle parts, and metallic structures in the nature of power trains, dollies, and storage containers.” We find these services are also closely related to the automobile customization, modification, and accessory installation services identified in the cited Registration. At a minimum, Applicant’s engineering and industrial design of vehicle parts are complementary to Registrant’s customization of automobiles because parts used in customization must be engineered and designed. The same evidence we reviewed above shows that these services are also offered by others under a single mark. The Porsche evidence, in particular, shows engineering and industrial design of vehicles and vehicle parts, which can be installed by Porsche. The custom design of automobile speaker enclosures and automotive upholstery by JK Automotive Designs also includes engineering and industrial design services and custom installation services. We find the International Class 42 services identified in the Application also are closely related, and complementary, to the services identified in the cited Registration. The second DuPont factor supports the refusal as to both classes of services from the Application. C. Trade Channels The evidence we reviewed under the second DuPont factor is also relevant here, because it confirms the common-sense point that custom manufacturing, engineering
Serial No. 98217661 - 13 - and design services as to custom vehicle parts flow through the same trade channels as custom installation services. The services are complementary—one needs custom designed and manufactured parts to install in a vehicle being customized—and it follows that the services flow through overlapping trade channels. There are no limitations as to trade channels in the Application or the cited Registration, so we must presume the services flow through the normal trade channels for such services. Because these services are complementary, the normal trade channels overlap. D. Customer Care The fourth DuPont factor considers the likely care exercised by relevant consumers. DuPont, 476 F.2d at 1361 (considering “[t]he conditions under which … sales are made, i.e. “impulse” vs. careful, sophisticated purchasing”). Applicant argues that the customers of automobile customization services are careful and that customized automobiles are expensive.17 Applicant points out that many of the customized vehicles shown in the record are from brands known to be expensive, Mercedes Benz and Lamborghini.18 There is no evidence establishing the price points of the vehicles Applicant identifies, but even if there were, that would not matter here. There are no limitations as to the nature of the automobiles that might receive the customization services identified in the cited Registration. 17 6 TTABVUE 14-15. 18 Id. at 15.
Serial No. 98217661 - 14 - We find this is a mixed market, with some consumers likely making careful purchasing decisions and some making less careful decisions, and, as a result, we are required to base our decision “on the least sophisticated potential purchasers.” Stone Lion Capital Partners, 746 F.3d at 1325. We find that the “least sophisticated potential purchasers” of Registrant’s automobile customization services likely exercise ordinary care in making purchasing decisions, which does not materially alter the likelihood of confusion. The fourth DuPont factor is neutral. E. Factor Six – The Impact of Third-Party Registrations If properly made of record, third-party registrations or evidence of third-party uses may be relevant, in the manner of dictionary definitions, “to prove that some segment of the [marks] has a normally understood and well recognized descriptive or suggestive meaning, leading to the conclusion that that segment is relatively weak.” Juice Generation, Inc. v. GS Enters. LLC, 794 F.3d 1334, 1339 (Fed. Cir. 2015). See also Jack Wolfskin, 797 F.3d 1363 (Fed. Cir. 2015); Tektronix, Inc. v. Daktronics, Inc., 534 F.2d 915 (CCPA 1976) (even if “there is no evidence of actual use” of “third-party registrations,” such registrations “may be given some weight to show the meaning of a mark in the same way that dictionaries are used”). “[E]vidence of third-party registrations is relevant to ‘show the sense in which . . . a mark is used in ordinary parlance.’” In re Guild Mortg. Co., No. 86709944, 2020 TTAB LEXIS 17, at *10 (quoting Juice Generation, 794 F.3d at 1339 (noting that third-party use and registrations may be used to establish how a term is understood)).
Serial No. 98217661 - 15 - Applicant relies on internet screenshots from third-party websites to challenge the conceptual strength of the cited mark.19 To be probative, the third-party evidence must show some pattern of use with the same or similar services. It follows that such evidence is only probative if it identifies the same or similar services to those found in the cited Registration. Omaha Steaks, 908 F.3d at 1324-25 (error to rely on third- party evidence of similar marks for dissimilar goods, as Board must focus “on goods shown to be similar”); i.am.symbolic, 866 F.3d at 1328 (disregarding third-party registrations for other types of goods where the proffering party had neither proven nor explained that they were related to the goods in the cited registration). In Omaha Steaks, the Federal Circuit explained the importance of limiting the scope of the inquiry into third-party uses. Omaha Steaks, 908 F.3d at 1324-25. The parties in Omaha Steaks identified “meat” as their goods, but the third-party evidence included other foods, like popcorn and wine. Id. at 1325. Because the identified goods were limited to meat, the court held it was error to consider other registrations for other types of food. Id. Most of the third-party evidence Applicant submitted shows a single screenshot from a website and fails to adequately identify the goods or services the website owner provides. None of the third-party evidence in the record shows “Automobile customization, modification, and accessory installation services.” Some of the third-party evidence shows uses that are somewhat similar or related to the services identified in the cited Registration. Fortech Racing Components 19 6 TTABVUE 15-17.
Serial No. 98217661 - 16 - appears to provide after-market automobile parts, and such parts might be used to customize or modify an automobile.20 Forte’s Parts Connection sells custom parts, but the evidence states they “provide tech support, insuring [sic] your installation goes smoothly.”21 This use, therefore, does not show customization services, but rather retail parts sales services, where the parts might be used in customizing an automobile. While these are different services, they are related in some of the same ways we found the services in the Application are related to those in the cited Registration. The screenshot from the FURI TEK website shows what looks like a customized automobile, and shows some parts.22 We cannot determine from this scant evidence whether this party offers services similar or related to those identified in the cited Registration. For-Tech Inc. appears to be an auto repair shop, and it might do customization work, but the evidence of record simply shows the business sign outside a building.23 4 Tech Auto Service also appears to be an auto repair shop, but again, this evidence fails to show a probative third-party use because there is nothing in the evidence showing that this party offers customization services or makes customized parts.24 Finally, fintex appears to provide coatings for use with automobiles, but the 20 Request for Reconsideration dated June 6, 2025, at 18. 21 Id. at 21. 22 Id. at 29. 23 Id. at 36. 24 Id. at 37.
Serial No. 98217661 - 17 - evidence shows no customization services.25 The remaining uses shown by Applicant range from a custom gun shop26 to a drill bit.27 Applicant never explains what meaning is established from his third-party evidence, and we can find none. These uses are far too varied to establish any common practice within the relevant industry. Indeed, none of the third-party uses identify automobile customization services. Only a couple of the uses show what might be custom automobile parts, but the evidence of these uses does not indicate that the trademarks or trade names used have any particular meaning. Furthermore, because the cited Registration is “prima facie evidence of the validity of the registered mark,’’ see Section 7(b) of the Trademark Act, 15 U.S.C. § 1057(b), we must assume that the cited mark FORTEC is inherently distinctive as evidenced by its registration on the Principal Register without a claim of acquired distinctiveness under Section 2(f) of the Trademark Act. See Tea Bd. of India, No. 91118587, 2006 TTAB LEXIS 330, at *62; New Era Cap Co., Inc. v. Pro Era, LLC, No. 91216455, 2020 TTAB LEXIS 199, at *29-30. We, therefore, give the cited mark “the normal scope of protection to which inherently distinctive marks are entitled.” Bell’s Brewery, Inc. v. Innovation Brewing, No. 91215896, 2017 TTAB LEXIS 452, at *20. The sixth DuPont factor is neutral. 25 Id. at 39. 26 Id. at 32. 27 Id. at 28.
Serial No. 98217661 - 18 - F. Conclusion: Weighing the Factors The marks are similar and the services are related. The first two DuPont factors weigh heavily in this appeal and both factors point toward a likelihood of confusion. The third DuPont factor also supports the refusal, while the fourth and sixth DuPont factors are neutral. Confusion is likely. Decision: The Section 2(d) refusal is affirmed.
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